Thousands of Kansas voters will be allowed to cast regular ballots in local, state and federal elections in November without providing proof of citizenship under an agreement forged by the American Civil Liberties Union and Kansas Secretary of State Kris Kobach.
The agreement was announced Thursday, a day before Kobach was to appear in court for a contempt hearing. The hearing was canceled shortly after the agreement was filed in court.
Federal Judge Julie Robinson had ordered Kobach in May to ensure that people who registered to vote at the DMV could vote in November’s election under the federal Motor Voter Act regardless of whether they had provided proof of citizenship. There were more than 18,600 such voters earlier this month.
Kobach and the ACLU, representing the plaintiffs, disagree about what that order entails, but they have resolved the most pressing issues. Voters can cast their ballots unimpeded on Nov. 8 while the case continues to be litigated.
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Under the agreement, Kobach will instruct local election officials to send out a new notice “that unequivocally advises covered voters that they are ‘deemed registered and qualified to vote for the appropriate local, state and federal elections’ ” in the Nov. 8 general election.
The state will allow these voters to cast standard ballots instead of provisional ones – as they were required to do in the August primary.
Kobach will also update the state’s voter information website so that these voters see that they are listed as registered to vote before Oct. 12.
Kansas began requiring voters to provide proof of citizenship, such as a birth certificate or passport, when they registered to vote in 2013.
Kobach, who championed the policy, has contended that it prevents non-citizens from voting. Opponents say the policy has prevented citizens from exercising their right to vote.
“Our case is ongoing, but this interim agreement is a critical victory for Kansans who want to vote in the November election,” said ACLU attorney Orion Danjuma in a statement. “It is a shame that voters had to fight so hard to get Kris Kobach to do his job.”
By consenting to these steps for this election, Kobach retains his right to challenge them afterward as the case continues in court.
The ACLU will allow the secretary of state’s office to maintain a separate code that differentiates these voters from other registered voters in its internal registration system, and it will allow counties that use paper poll books to keep these voters on a secondary list.
Kobach said in a statement that his office was pleased that an interim agreement has been reached. He remained unwavering in his view of the case and framed his decision to strike the agreement as driven by the tight time line before the election.
“The ACLU’s argument was weak at best,” Kobach said in the statement. “However, at this point the preparations for the November 8, 2016, general election must proceed with rules established to ensure the efficient administration of the election.”
Rick Hasen, an election law expert at the University of California, Irvine School of Law, said he was not surprised Kobach was complying with the order, “because the alternative is contempt of court and that’s not something anyone wants to do.”
Only 73 of the thousands of voters covered by this case showed up to vote in the August primary statewide. Hasen expects much higher turnout among this segment of voters in November because of the presidential race.
“We’re going to see much better turnout from all pockets of voters … because most people are excited to vote at the top of the ticket for the president,” he said. “So I expect turnout will be up and I expect it will be up even more if the rules are clear and well publicized.”